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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11312
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-00497-MHT-TFM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO LANDAVERDE-CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(October 19, 2015)
Before HULL, JULIE CARNES and FAY, Circuit Judges.
PER CURIAM:
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After pleading guilty, Antonio Landaverde-Cruz (“Cruz”) appeals his 57-
month sentence for one count of illegal reentry after his 2005 deportation
following his 2003 conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). After review, we affirm.
I. DRUG TRAFFICKING OFFENSE UNDER § 2L1.2
On appeal, Cruz contends the district court erred when it increased his
offense level by 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), based on
Cruz’s 2003 Alabama conviction for trafficking in methamphetamine. 1 We first
review how Cruz’s guidelines range was calculated and then the relevant law about
the 16-level increase.
At sentencing, the district court calculated a base offense level of 8, pursuant
to U.S.S.G. § 2L1.2(a). Over Cruz’s objection, the district court added 16 levels,
pursuant to § 2L1.2(b)(1)(A)(i), because Cruz was previously deported in 2005
after being convicted of felony methamphetamine trafficking in Alabama and
sentenced to 15 years in state prison. After a 3-level reduction for acceptance of
responsibility, pursuant to § 3E1.1(a) and (b), Cruz had a total offense level of 21.
Based on his multiple prior criminal convictions, Cruz was assigned a criminal
history category of IV, which yielded an advisory guidelines range of 57 to 71
1
This Court reviews de novo whether a defendant’s prior conviction qualifies as a “drug
trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A). United States v. Madera-Madera, 333
F.3d 1228, 1231 n.2 (11th Cir. 2003).
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months. Cruz asked for a downward variance to his time served of approximately
6 months, which the district court denied. The district court imposed a 57-month
sentence.
Under § 2L1.2, an illegal reentry defendant receives a 16-level increase in
his offense level if he was previously deported after he was convicted of a “drug
trafficking offense for which the sentence imposed exceeded 13 months.”
U.S.S.G. § 2L1.2(b)(1)(A)(i). The commentary to § 2L1.2 defines a “drug
trafficking offense” as “an offense under federal, state, or local law that prohibits
the manufacture, import, export, distribution, or dispensing of, or offer to sell a
controlled substance (or a counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense.” Id. § 2L1.2 cmt. n.1(B)(iv).
The Alabama statute Cruz was convicted of violating provides, in relevant
part, that “[a]ny person who . . . is knowingly in actual or constructive possession
of, 28 grams or more of methamphetamine . . . is guilty of a felony, which felony
shall be known as ‘trafficking in methamphetamine.’” Ala. Code § 13A-12-
231(11)(a). Cruz argues that this offense is not a “drug trafficking offense” within
the meaning of § 2L1.2 because the Alabama statute does not have as an element
the intent to distribute.
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Alabama’s scheme of drug possession crimes is a three-tiered classification
system based on the amount of drugs possessed, with the least serious offense
being simple possession, the next serious being possession with intent to distribute,
and the most serious being drug trafficking. See Ala. Code §§ 13A-5-3(b); 13A-
12-211; 13A-12-212; 13A-12-231. For methamphetamine offenses in Alabama,
simple possession is the knowing possession of any amount of a controlled
substance, which is a Class C felony with a mandatory minimum prison term of 1
year and 1 day. Ala. Code §§ 13A-12-212(a)(1), (b); 13A-5-6(a)(3). Possession
with intent to distribute is the knowing possession of between 9 grams and 27
grams of methamphetamine, which is a Class B felony with a mandatory minimum
2-year prison term. Ala. Code §§ 13A-12-11(c)(6), (d), 13A-5-6(a)(2). Finally,
trafficking in methamphetamine, the crime of which Cruz was convicted, is the
knowing possession of 28 grams or more of methamphetamine, which is a Class A
felony with a mandatory minimum three-year sentence if the quantity of
methamphetamine was between 28 grams and 499 grams. Ala. Code §§ 13A-12-
231(11)(a), (13).
While this Court has not addressed the Alabama drug trafficking statute in
regards to U.S.S.G. § 2L1.2, we have addressed Georgia’s statute, which is nearly
identical. In United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. 2003), this
Court addressed the same argument that Cruz now makes with respect to a Georgia
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conviction for trafficking in methamphetamine and § 2L1.2 of the Guidelines.
Like the Alabama statute here, Georgia’s statute defined the offense as the
“possession of 28 grams or more of methamphetamine.” See Madera-Madera, 333
F.3d at 1231; see also O.C.G.A. § 16-13-31(e). This Court explained that,
although the Georgia statute contained no explicit intent to distribute, under
Georgia’s three-tiered drug offense scheme, it was a more serious offense than
either simple possession or possession with intent to distribute, and thus the statute
“necessarily infers an intent to distribute once a defendant possesses a certain
amount of drugs.” Madera-Madera, 333 F.3d at 1231-32. 2 The Madera-Madera
court held that the Georgia methamphetamine conviction fell within § 2L1.2’s
definition of a “drug trafficking offense.” Id. at 1233.
This Court subsequently concluded that Madera-Madera dictated that a
defendant’s Florida offense of trafficking in cocaine by possession of between 200
and 400 grams was a “serious drug offense” under the Armed Career Criminal Act,
924(e)(2)(A)(ii), because Florida’s three-tiered scheme was “not materially
distinguishable” from Georgia’s scheme. United States v. James, 430 F.3d 1150,
1155 (11th Cir. 2005). We explained that Florida’s drug trafficking statute, like
2
To the extent Cruz argues that the definition of “drug trafficking offense” in the
commentary to § 2L1.2 requires the “intent to distribute” to be an explicit statutory element of
the offense, Madera-Madera also rejected this argument, explaining that the Sentencing
Commission chose not to define a “drug trafficking offense” by its elements, but instead “by the
type of conduct prohibited by the state statute.” See Madera-Madera, 333 F.3d at 1233.
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Georgia’s, “necessarily infers an intent to distribute once a defendant possesses 28
grams or more.” Id.
Accordingly, based on Madera-Madera, we too conclude here that
Alabama’s drug trafficking statute “necessarily infers an intent to distribute,” if at
least 28 grams of methamphetamine is possessed and, thus, a conviction under that
statute qualifies as a “drug trafficking offense” within the meaning of U.S.S.G.
§ 2L1.2. See Madera-Madera, 333 F.3d at 1232.
II. DUE PROCESS CLAIM
Cruz argues that, at sentencing, the district court violated his right to due
process by considering the government’s unproven proffer that Cruz had an
outstanding arrest warrant in Florida for his alleged participation in a 2011
methamphetamine sale.
To establish that a defendant’s due process rights have been violated by the
sentencing court, the defendant must show that: (1) the challenged evidence is
materially false or unreliable and (2) it actually served as the basis for the sentence.
United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). The defendant
bears the burden of proving that the court explicitly relied on the information. Id. 3
Here, Cruz cannot carry his burden to establish a due process violation
because the record does not show that the district court relied upon the
3
“We review de novo challenges to the constitutionality of a defendant’s sentence.”
Ghertler, 605 F.3d at 1268.
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government’s proffered, but unproven, information about an outstanding warrant.
Specifically, Cruz’s Presentence Investigation Report (“PSI”) stated that: (1) Cruz
had a pending charge in Florida for trafficking in amphetamine or
methamphetamine based on his delivering a bag of methamphetamine to a
confidential informant who was working with a drug task force in August 2011; (2)
a “capias” issued on October 2, 2012 for this pending charge; and (3) the probation
officer had confirmed that Cruz had the outstanding warrant with the sheriff’s
office in Florida.
Cruz did not object to the pending charge information in the PSI before or at
the beginning of the first sentencing hearing, when the district court asked for
objections to the PSI. However, once the government referred to the outstanding
warrant in opposing Cruz’s request for a downward variance to time served, Cruz
objected to the information. Cruz pointed out that the arrest warrant did not issue
for over a year and was never served. Cruz further maintained that he was not “the
person who they believe committed this offense.”
The district court expressed reluctance to vary downward to time served if
Cruz had engaged in the very serious conduct alleged in the outstanding warrant.
The district court continued the sentencing hearing so that the government could
obtain more evidence as to the outstanding warrant. When the sentencing hearing
resumed, the government advised the district court that it had contacted the clerk of
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the state court and the sheriff’s office and confirmed that a detainer was now
lodged against Cruz, that Cruz’s vehicle had been pulled over for a traffic violation
as part of an undercover drug investigation, but the arrest warrant was delayed so
that the larger investigation could be developed. The government, however, did
not present any evidence to support its contentions. Instead, Cruz submitted a copy
of the outstanding arrest warrant, but he continued to insist that he was not the
person identified in the warrant.
On appeal, Cruz argues that, because he objected, the government had the
burden to prove the disputed information—that he was the person described in the
outstanding warrant who participated in the methamphetamine sale to the
confidential informant—but the government failed to do so. The problem for Cruz
is that, even assuming arguendo that the disputed information was materially false
and unreliable, the district court did not refer to it when it denied Cruz’s request for
a downward variance or when it imposed the 57-month sentence. Rather, the
district court explicitly stated that its reasons for denying the downward variance
included Cruz’s prior 15-year sentence for his 2003 methamphetamine trafficking
conviction, his high criminal history category (in which the outstanding warrant
had no bearing), and the seriousness of the charged reentry offense. Thus, on the
record before us, Cruz has not shown that the outstanding warrant or his alleged
participation in a 2011 methamphetamine sale to a confidential informant served as
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the basis for his sentence. See Ghertler, 605 F.3d at 1269. Accordingly, Cruz’s
has not established that the sentencing court violated his due process rights.
For all these reasons, we affirm Cruz’s conviction and 57-month sentence.
AFFIRMED.
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